U.S. District Judge Benson Everett Legg has struck down Maryland’s handgun law to the extent that it requires residents show a “good and substantial reason” to get a handgun permit. While he is being criticized for the opinion, I believe that Judge Legg is on sound legal ground in light of the Supreme Courts decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010). The case does enter into largely unmapped territory on what standard of scrutiny to apply in such cases — a matter that could prove quite important in future cases.
Plaintiff Raymond Woollard obtained a handgun permit in 2002 after an intruder broke into his home. He fought the intruder and cited that as the basis for the permit. However, in 2009, he was denied the permit as unsupported by good cause and any “threats occurring beyond his residence.”
Here is the law in question in pertinent part:
§ 5-306. Qualifications for permit
(a) In general. — Subject to subsection (b) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds:
(1) is an adult;
(2) (i) has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed; or
(ii) if convicted of a crime described in item (i) of this item, has been pardoned or has been granted relief under 18 U.S.C. § 925(c);
(3) has not been convicted of a crime involving the possession, use, or distribution of a controlled dangerous substance;
(4) is not presently an alcoholic, addict, or habitual user of a controlled dangerous substance unless the habitual use of the controlled dangerous substance is under legitimate medical direction; and
(5) based on an investigation:
(i) has not exhibited a propensity for violence or instability that may reasonably render the person’s possession of a handgun a danger to the person or to another; and
(ii) has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.
Legg found that “[a] citizen may not be required to offer a `good and substantial reason’ why he should be permitted to exercise his rights,” he wrote. “The right’s existence is all the reason he needs.”
What is interesting is that the Heller decision did not specify the level of scrutiny that would be afforded in the review of such claims. In United States v. Chester, 628 F.3d 673 (4th Cir. 2010), the Fourth Circuit drew a distinction on the possession of a gun inside and outside a home in determining the level of scrutiny: “As we observe that any law regulating the content of speech is subject to strict scrutiny, we assume that any law that would burden the fundamental, core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” The court applied the intermediate level of scrutiny outside of the home.
Legg applied the intermediate standard:
As stated, Maryland’s permitting scheme, insofar as it requires a good and substantial reason for a law-abiding citizen to carry a firearm outside his home, is subject to intermediate scrutiny. In order to prevail, the State must demonstrate that the challenged regulation is reasonably adapted to a substantial governmental interest. Under this standard, the degree of fit between the regulation and ―the well-established goal of promoting public safety need not be perfect; it must only be substantial. Heller v. Dist. of Columbia, 698 F. Supp. 2d 179, 191 (D.D.C. 2010).
Legg concludes that the law is little more than a “rationing system.” He adds:
It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate good reason beyond a general desire for self-defense. In support of this limitation, Defendants list numerous reasons why handguns pose a threat to public safety in general and why curbing their proliferation is desirable. For example, they argue that an assailant may wrest a handgun away from its owner, and cite evidence that this possibility imperils even trained police officers. See Defs.’ Mot. Summ. J. 15, Docket No. 26. They note that when a police officer is engaged in a confrontation with a criminal, the presence of an armed civilian can divert the officer’s attention.Id. at 16. In addition, Defendants urge that while most permit holders are law-abiding, there is no guarantee that they will remain so. They cite studies purporting to show that the majority of murderers have no previous felony conviction that would have prevented them from obtaining a permit. Id. at 35. Thus, they argue, a permitting scheme that merely denies permits to convicted felons is inadequate.
These arguments prove too much. While each possibility presents an unquestionable threat to public safety, the challenged regulation does no more to combat them than would a law indiscriminately limiting the issuance of a permit to every tenth applicant. The solution, then, is not tailored to the problem it is intended to solve. Maryland’s good and substantial reason requirement will not prevent those who meet it from having their guns taken from them, or from accidentally shooting themselves or others, or from suddenly turning to a life of crime. Indeed, issuing permits specifically to those applicants who can demonstrate an increased likelihood that they may need a firearm would seem a strange way to allay Defendants’ fear that when handguns are in the possession of potential victims of crime, their decision to use them in a public setting may actually increase the risk of serious injury or death to themselves or others. Id. at 15. If anything, the Maryland regulation puts firearms in the hands of those most likely to use them in a violent situation by limiting the issuance of permits to groups of individuals who are at greater risk than others of being the victims of crime. Id. at 40.
There are obviously good-faith reasons to oppose the interpretations in cases like Heller, though I have reluctantly agreed with its foundational interpretation of the right. Here is a prior column. However, this is now controlling precedent for lower courts and Legg followed that precedent. It will, however, be interesting if higher courts agree on the standard of review in the expected appeal of this decision.
Here is Judge Legg’s bio:
District Judge Benson Everett Legg was born in 1947 in Baltimore, Maryland. Judge Legg attended Princeton University and graduated magna cum laude in 1970, with a B.A. degree in English literature. He pursued his law degree at the University of Virginia School of Law, achieving his J.D. in 1973. While at the University of Virginia School of Law, Judge Legg served on the editorial board of the Virginia Law Review from 1971-73, and he was a member of the Order of Coif. During the summer of 1971, Judge Legg worked at the Baltimore law firm of Venable, Baetjer and Howard. After his second year of law school, he worked as a summer associate at Goodwin, Procter and Hoar in Boston.
Following law school, Judge Legg served as law clerk to the Honorable Frank A. Kaufman of the United States District Court for the District of Maryland, from 1973-74. In 1975, Judge Legg returned to Venable, Baetjer and Howard as an associate, becoming partner in 1982. On May 15, 1991, Judge Legg was nominated by President Bush to a vacant seat on the United States District Court for the District of Maryland. Confirmed by the Senate on September 12, 1991, Judge Legg was commissioned on September 16, 1991. Judge Legg served as chief judge from Jan. 6, 2003 until Jan. 4, 2010.
Admitted to the Maryland Bar in 1973, Judge Legg was active in bar association work. He served on the business torts litigation committee of the American Bar Association’s Litigation Section.He was chair of the economics of litigation committee of the Maryland State Bar Association. In addition, he served the Baltimore City Bar Association as vice-chair and chair of the continuing legal education committee and was on the executive council from 1987-88.
A faculty member of the Maryland Institute for the Continuing Professional Education of Lawyers (MICPEL), Judge Legg was also an instructor at the Trial Advocacy Institute at the University of Virginia. He authored a Virginia Law Review article, entitled “Reliance Electric and 16(b) Litigation” in 1972, co-authored the Maryland Appellate Practice, Rules and Commentary with Forms in 1988, and contributed to the ABA’s Model Jury Instructions for Business Tort Litigation (1988).
Judge Legg has been a member of many professional associations, such as the Princeton University Secondary Schools Committee; Advisory Board of the National Aquarium in Baltimore(1987 to 2003); Trustee and Member of the executive and financial committees of the Baltimore Zoological Society (1990 to 2004); Member of the executive committee of the Gilman School Alumni Association; and Serjeants Inn. He also served on the Board of Directors of the Central Maryland Chapter of the American Red Cross, from 1979 to 1988.
Amazing that as an 18yr old I can have a 4000 pound car filled with flammable gas, a house with a loan you can’t afford, join the marines and die horribly for the people in power, but cannot exercise my written rights… Hell in NYC as of June 11, 2012, drivers killed more people than firearms.
Can’t even have a handgun from private purchase now untill 21, when I have the money and am probably more responsible than many people in their 30s.
People who go through the hoops/time/money to purchase a gun legally and apply for a ccw aren’t the problem, they are obviously more responsible and won’t be using a registered gun in crimes. Crime rates are A LOT higher in states with stricter gun control, and making it tighter doesn’t help. You will be hesitant to rob someone who can defend themselves. You cant even defend your property in Maryland, you have to retreat to inside your house (bye bye car) and can only harm the intruder if your life is in immediate danger. There have been home invasions around my house and 3 attempts to break into my car, not even in a “bad” area. I had a gun pulled on me before and had 2 guys try to jump me earlier this summer for my phone/shoes. Lucky a broken nose drove them off, but what if he had a pistol on him? I don’t want to throw away my scolarship because I had to go to jail for defending myself with a “regulated” weapon. I could kill someone or rob a place as easy and cheaper with a rifle yet I can buy those no problem. A 20 shot mag won’t do that much more than a 10, if you get hit with the first two out anyways.
Guns were part of the founding of this country, if you have one you will always be a free man.
I have recently started a site, the information you provide on this site has helped me tremendously. Thanks for all of your time & work.
What I fail to understand is : criminals are very unlikely to go through the process (speaking of NC) of training, fingerprints, local and state law enforcement, FBI checks yet the law-abiding citizens go through this to receive a CC permit and are treated like children by the state. I personally am sick of hearing about women being abducted, raped, and murdered in broad daylight, in or out of their homes. Oft is said “well, she put up a good fight.” She puts up a good fight by dropping the criminal like a bad habit. I would recommend what my wife has, a Ruger LCR 357 Magnum. Mike
Responsible gun owners often want to get a concealed weapons permit for self-defense purposes. Saying that one must prove a need for a permit is like telling us we must prove we need a car. We are adults and should be treated as such.
Those who have lost loved ones to gun violence as well as knives assualts and other types of violence have my sympathy.
Perhaps many who support gun control should think about the answer to this question.
” If the students at the Virginia Tech Massacre, had the right to carry guns on campus, some of them may have been carrying a weapon that day.
Wouldn’t it be logical to assume that Mr Cho’s murderous rampage would have come to an end much sooner, and many of the 27 students who died that day would still be alive? ”
Think about this with an open mind and be honest with yourself.
There times when a police force is not able to adaquately protect citizens in a timely enough manner, and armed citizens could protect themselves and others.
Funny, James Q. Wilson passes this week, he could provide some valuable input here…..
Better to beg forgiveness (with a good attorney in tow) than to ask permission. I carry. Everywhere.
Tom, I think the Virginia Tech massacre, which ocurred on a campus where all firearms were banned by law in April of 2007, and in which 32 people were killed and 25 others wounded by a maniac weilding multiple handguns, may have changed the minds of a few judges on the issue of gun bans on campus.
Oh, shall we now compare and contrast with this bit of legal “wisdom”:
http://news.yahoo.com/colorado-court-says-students-carry-guns-campus-014512749.html
The University of Colorado overstepped its authority when the school’s board of regents imposed a ban on the carrying of concealed weapons at its four campuses, the state’s Supreme Court ruled on Monday.
In overturning the policy, the court said that a concealed -carry law passed by the state legislature trumped the school’s ban because it did not carve out an exception for the state’s flagship university.
“We hold that the (concealed carry law’s) comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus,” the ruling said.
“This is a victory for gun rights as well as civil rights,” said James Manley, an attorney with the Mountain States Legal Foundation that sued on behalf of three students who challenged the ban.
“The University of Colorado has to follow state law and the regents can’t ignore that.”
Ken McConnellogue, spokesman for the university, said the regents believed as an elected body they had the legal right to set security policy at their campuses.
“We’re disappointed that the state supreme court has taken away what the university believed was its statutory and constitutional authority to provide for the safety of our students, faculty, staff and visitors,” he said.
Currently, 22 states ban the carrying of concealed weapons on college campuses, and Utah is the only state that explicitly forbids the banning of concealed weapons at its 10 public colleges and universities, according to the National Conference of State Legislatures (NCSL) web site.
Last year, the Oregon Court of Appeals overturned the state university system’s ban on carrying guns on campus, the conference said.
Additionally, Wisconsin law allows concealed weapons on college campuses, but schools can forbid weapons inside its buildings if signs are posted outside each facility saying weapons are prohibited.
The Colorado case stemmed from three students with valid concealed-carry permits who sued in 2008 after university police denied them permission to carry their weapons on campus.
The students lost at the trial court level, but the ruling was overturned by the Colorado Court of Appeals. The university appealed that ruling, setting the stage for a review by the state’s highest court.
McConnellogue said the regents would meet with the university’s legal counsel to decide how to comply with the ruling while maintaining security on campus.
He said it is unclear how the ruling will affect other university properties such as the university’s football stadium in Boulder and its hospital in suburban Denver
“It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate good reason beyond a general desire for self-defense.”
I most localities, like NYC, where there are severe restrictions against handgun permits, those of means and prominence find little restriction, while average citizens find themselves unable to qualify. If the Second Amendment guarantees the right to bear arms as a constitutional protection, then this is a correct ruling. I’m not a gun owner, but I believe this interpretation of the Second Amendment is correct.
Obama wasn’t able to restrict gun ownership because the government gun running operation, “fast and furious,” he and Holder were going to use to shape public opinion in opposition to the second amendment was exposed.
Raff could you tell us what the intended purpose of operation Fast and Furious was.
… and more kids die …
Raff,
That’s how those in power or think they are in power keep you suppressed……
I agree with AY, but disagree with Bdaman’s scare mongering. Obama has done nothing to restrict gun ownership and the NRA and gun companies have fed off racist fear mongering to sell guns.
I think the law was really too restrictive and not rationally related to gun ownership…..
Good on Judge Legg. Everyone is trying to get a Legg up on Obama in case he gets re-elected.
http://www.nbcdfw.com/news/local/Texas-Gun-Sales-Boom-141366763.html
Nationwide, more people than ever are buying firearms.
Last year, the FBI received more than 16.3 million inquiries from people running criminal background checks on potential gun buyers. That’s up from 12.7 million in 2008 and 11.4 million in 2007, FBI records show.
Texas had around 1 million such requests in each of the past four years, the second most, behind Kentucky, which had nearly double that. Officials say Kentucky’s numbers are high because fresh background checks are run every month there on gun owners with concealed-weapons permits.
“I’m constantly getting questions from people in the gun community about this [issue],” said Alan Korwin, author of nine gun law books, including Gun Laws of America, and operator of gunlaws.com. “People are concerned that if Obama wins, as a lame duck, he will go after firearms in a way we have never seen before.
“We saw a fire sale when he was elected last time,” he said. “But the speculation is that now … with his need to get re-elected gone, the sky is the limit on attacking the Second Amendment.”
http://www.star-telegram.com/2012/03/03/3781758/some-say-re-election-fear-is-driving.html#storylink=omni_popular#storylink=cpy